Easements Flashcards
1 - Re Ellenborough Park [1956]
The 4 necessary characteristics of an easement (DADS):
- Dominant and servient tenement
- Accomodate the dominant tenement
- Diversity of occupation
- Subject matter of a grant
a right of way over land in Northumberland cannot accommodate land in Kent
Bailey v Stephens (1862)
The owner must not be effectively excluded from their own land
Copeland v Greenhalf [1952]
Only a right to light in relation to one’s windows
Dalton v Angus
1 - no right to television reception - the easement would create too great a burden
Hunter v Canary Wharf Ltd [1997]
1 - Wheeldon v Burrows (1879)
Buyer on a sale of part can acquire an implied easement if the right was CAN Be
- Continuous
- Apparent
- Necessary for the reasonable enjoyment of the land
- Being already used as a quasi-easement by the seller for the benefit of the part of land being sold
Right to park amounts to an easement is a question of degree
London & Blenheim Estates v Ladbroke Retail [1994]
Negative easements are very limited
Phipps v Pears [1965]
Continuous and apparent - feature apparent on inspection
Ward v Kirkland [1967]
s.62 cannot operate to convert licence into an easement unless there is diversity of occupation
Payne v Inwood (1996)
s.62 enables existing rights of a permanent nature to be passed automatically in a conveyance of land. Occurs by virtue of its implied inclusion in a deed for a new tenancy
Wright v Macadam [1949]
If changes are made to a property whereby the easement previously enjoyed no longer exists this will extinguish the right and the easement will cease to exist
Moore v Rawson
Acquisition by prescription
Common Law - 20 yrs - presumption of time immemorial
Doctrine of Lost Modern Grant - 20 yrs - assumed deed has been lost
Prescription Act 1832
Prescription Act 1832
s.2 - Where right claimed in use for 20 years (40 to be absolute and indefeasible) unless enjoyment depends on written consent
s.3 - Right to light: 20 yrs uninterruptedf and without written consent, absolute and indefeasible right to light (buildings only)
Must show access of light and that use is being made of it
Amount of light entitled - City London Brewery - sufficient light according to the ordinary notions of mankind - comfortable use and enjoyment
s.4 (qualifies s.2) No right to an easement arises until court action brought to claim it
20/40 yrs use must be continuous until date of court action
Mills v Silver
Doctrine of lost modern grant useful if there has been 20 years use with a break in use
